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Western Watersheds Project v. Zinke

ELR Citation: 50 ELR 20047
Nos. 1:18-cv-00187-REB, (D. Idaho, 02/27/2020) (Bush, J.)

A district court set aside BLM's 2018 instruction memorandum that supplied changed instructions to the agency's offices about how to handle oil and gas lease sales on federal lands within greater sage-grouse management area boundaries. Environmental groups argued the memorandum revised previously existing BLM leasing processes without providing any public notice, comment, or environmental review, in violation of the APA, FLPMA, and NEPA. BLM argued the memorandum was not final agency action because it was merely a general policy statement, and thus was not required to go through notice-and-comment rulemaking. But the court disagreed, finding the memorandum implemented a required template for BLM's oil and gas leasing process in language that could only be understood as "finally determinative," that it required an unmistakably different framework for the agency's administration of oil and gas leasing decisions, and that legal consequences necessarily flowed from those changes. The groups next argued the memorandum was procedurally and substantively invalid under the APA, FLPMA, and NEPA. The court found the memorandum was a substantive rule that should have been issued through notice-and-comment procedures, and that BLM's failure to do so made the memorandum procedurally invalid. Further, it found that BLM's intention of reducing and eliminating public participation in the future decisionmaking process could not be reconciled with FLPMA's and NEPA's overarching mandates, and thus that the memorandum was substantially invalid. The groups also argued the application of the memorandum restricted public comment by not allowing participation at the leasing decision stage, or by requiring the public to hurriedly comment because of its condensed comment and protest periods. The court agreed, finding the memorandum improperly restricted public comment in lease sales. It therefore set aside the memorandum until BLM completes a compliant notice-and-comment rulemaking, and reinstated the agency's prior memorandum.